Friday, 23rd of October 2015

 

Issue #2 October

 

TOP STORY

457 visa amendments to hel austrlai china free trade agreement
 
 

ISSUES OF THIS MONTH

457 visa amendments agreed to help Australian trade agreement with China

 

Recording Private Conversations

 

New ministerial working group will protect foreign workers in Australia

 

Australian immigration chiefs apologise

 

Recent Decision Further Clarifies Tribunal's Jurisdiction in 457 Cases

 

The DIBP and Australian Tax Office: Data matching and information sharing

 
 

457 visa amendments agreed to help Australian trade agreement with China

Employers in Australia wishing to recruit workers from overseas on 457 visas under work agreements will have to show they have made recent and genuine efforts to find local people first.

It comes as part of an amendment to make existing regulations stronger to address concerns about the new China-Australia Free Trade Agreement (ChAFTA) which requires new legislation to be passed through the Australian Parliament.

The amendment has been brought in to ensure that the landmark legislation is not thrown out by opposition MPs.

“It is the firm view of the Government that Australians should always have priority in the labour market, and that overseas workers should only be recruited in circumstances that suitably qualified local workers are not available,” said Immigration Minister Peter Dutton.

He explained that the amendment will apply to all work agreements, including those under the Investment Facilitation Arrangement (IFA), linked to ChAFTA. ‘It is important to note that labour market testing is indeed already a mandatory requirement under current Government policy which is detailed in existing DIBP guidelines,’ he added.

“In regard to subclass 457 visas for overseas tradespersons, the Government will amend a visa condition to make it clear that visa holders must also obtain any licenses, registrations or memberships required under commonwealth or state or territory law. The visa holder will be required to notify the Immigration Department if their licence or registration is refused, revoked, ceased or cancelled,” said Dutton. “We have also reaffirmed that DIBP will continue to investigate evidence based allegations of non-compliance with visa conditions, including those concerning licensing and registration. The Department will also report annually on visa compliance monitoring.”

He also said that as recommended by the recent Independent Review of the Integrity of the Subclass 457 Programme, the Government will undertake an evidence based review of the TSMIT (Temporary Skilled Migration Income Threshold). This review was scheduled to begin by the end of 2015, but has been brought forward as part of the agreement to get the ChAFTA through Parliament.

The TSMIT is the entry level point into the 457 programme, and positions with a market salary below the TSMIT are not eligible to be sponsored under the Subclass 457 programme.

The forthcoming review of the TSMIT will consider its current level of $53,900, whether it should be indexed and if so advise on an appropriate methodology.

Dutton said that the base rate will not be increased prior to this review which will commence before the end of this year. All relevant stakeholders will be consulted including peak business groups and the Australian Council of Trade Unions.

“The agreement reached represents both a sensible outcome, which does not increase the current costs to business associated with 457 visa holders and major progress in terms of doing all we can to get this agreement into force as soon as possible so that the substantial benefits can begin to flow,” Dutton concluded.

 
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Recording Private Conversations

Recording private conversations

From time to time Employers may be faced with employees secretly recording workplace conversations. The legality of recording private conversations varies from State to State.

In Queensland, if you are a party to a face to face private conversation you are legally allowed to record the conversation in secret. This is permitted under s 43 of the Invasion of Privacy Act 1971 (Qld) (IPA). This means that an employee that is having a private conversation with their Employer, such as a performance management meeting, is not required under the IPA to disclose or seek permission to record that private conversation.

Private face to face conversations are allowed to be secretly recorded under the IPA, does the same apply for telephone conversations? Telephone conversations are slightly different due to the Telecommunications (Interception) Act 1979 (Cth) (TIA).

The TIA prohibits the recording of a telephone conversation if a device that is physically attached to the telephone is used to record the conversation. Therefore if the telephone had an external bugging device attached, it is illegal to record the conversation in Queensland.

However, the IPA allows the recording of a telephone conversation by a device that is not attached to a telephone. For example, if a Smartphone is used this would be considered an external device and it would be legal to record the conversation under the IPA.

It is important to note that it is illegal to record a telephone or face to face conversation by a person who is not a party to the conversation. Further, a conversation which can reasonably be overhead is not regarded as a private conversation under s 43 of the IPA. This means the recording of conversations that can reasonably be overheard are not permitted by the IPA and are illegal to record.

If the secret recording of conversations are permitted under the IPA in the circumstances described above, does this mean that an Employer has no choice but to accept this conduct? The answer to this is a resounding no. Although it may be lawful in Queensland for private conversations to be recorded in secret by parties to the conversation, this does not mean you need to tolerate secret recordings in your business.

The secret taping of conversations although permitted by law in the above circumstances, in the very least, strains the trust required in any private conversation. Trust is essential in an employment relationship and if employees are secretly recording conversation you are within your rights to address this behaviour.

An Employer can lawfully and reasonably direct an employee to not secretly record conversations. Failure by an employee to follow a lawful and reasonable direction from an Employer may be a valid ground to undertake performance management. Prior to acting on performance management of an employee for secret recordings, it is recommended to obtain independent legal advice.

NB Lawyers are offering a FREE 20 minute legal consultation to all Employers.

For further information please contact Jonathan Mamaril, Principal & Director on 07 3876 5111 or email jonathanm@nb-lawyers.com.au.

Written By

Jonathan Mamaril
Principal & Director,
NB Lawyers
07 3876 5111
jonathanm@nb-lawyers.com.au
LAWYERSFOREMPLOYERS.COM.AU

 

New ministerial working group will protect foreign workers in Australia

Foreign Workers Protection in Australia

A new ministerial working group has been established in Australia to consider further policy options to protect vulnerable foreign workers in the country.

Employment Minister Michaelia Cash said that strong action is needed to stamp out exploitation, particularly in relation to foreign workers.

“The Government has been resolute in our efforts to catch those seeking to take advantage of foreign workers, while also ensuring these workers are better educated about their rights while in Australia, however more must be done,” said Cash.

She will chair the Ministerial Working Group Protecting Vulnerable Visa Holders and it will also include the Minister for Immigration and Border Protection Peter Dutton, the Minister for Justice Michael Keenan and Small Business Minister and Assistant Treasurer Kelly O’Dwyer.

“Foreign workers are important contributors to the Australian workforce and we want to ensure they continue to view Australia as a great destination. We know that foreign workers are potentially more vulnerable to workplace exploitation and as such we have a responsibility to investigate additional measures to ensure their protection,” said Cash.

She also explained that the Australian Government is already taking concerted action to catch and penalise those who exploit foreign workers, for example, the establishment of Taskforce Cadena to investigate illegal practices in temporary visa programmes, including the activities of labour hire companies.

The Taskforce includes the Department of Immigration and Border Protection, the Fair Work Ombudsman, the Australian Federal Police, the Australian Securities and Investment Commission and the Australian Taxation Office.

Over the past three years the Fair Work Ombudsman has dealt with over 6,000 requests for assistance from visa holders and recovered more than $4 million in outstanding wages and entitlements.

 

 

Australian immigration chiefs apologise

Immigration Officials Apologise

The heads of the Australian Border Force and Immigration have apologised for a joint operation which caused an outcry by suggesting that officials were going out onto the streets to question people over their visa status.

Operation Fortitude was cancelled due to the outrage caused by a media release which had not been cleared at the top level and suggested that officers would be stopping people in the street in Melbourne to check their immigration status and visa eligibility.

Immigration Department chief Mike Pezzullo said that the ABF has now conducted a comprehensive review of its media procedures and several officers had been formally counselled since the incident in August.

“It is clear that the media release issued that morning was very badly worded and gave rise to the impression that the ABF has general powers of questioning people in the street. It does not, and I apologise for the impression that was wrongly created,” said Pezzullo.

ABF Commissioner Roman Quaedvlieg also apologised. At the time he was criticised for saying that the release was merely ‘clumsily worded’ but has not admitted that it was actually factually wrong.

“Unfortunately in the case of Operation Fortitude, the ABF issued a complementary media release which was factually wrong in describing its role,” said Quadvlieg. “This resulted in public confusion, concern and distress, for which I apologise.”

He explained that the press release that was cleared at a low level in the organisation and it portrayed a role which was not the agreed between the ABF and Victorian police. However, he admitted that similar operations are carried out ‘all the time, all around the country, by the state and territory police jurisdictions’, adding that the ABF is ‘a secondary referral agency’ in such operations.

“It’s an unfortunate incident, and it shouldn’t have occurred,’ said Quadvlieg.

He also explained that six officers were to be stationed at the Flinders Street and Southern Cross taxi ranks, dealing with any cases referred to them by police.

“Where there was an issue that arose in relation to a question about an immigration issue, we would then be called forward and we would take that referral and make an appropriate assessment,” said Quadvlieg. “My anticipated workload for those officers would have been probably no more than half a dozen inquiries over the course of each evening.”

Meanwhile, Pezzullo told senators the ABF had no power to stop and randomly question people and strongly rejected suggestions of racial profiling.

“Australia is a multicultural society, it would be a slippery slope to start to assume someone is a non-citizen,” said Pezzullo.

 
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Recent Decision Further Clarifies Tribunal's Jurisdiction in 457 Cases

Clarification on tribunal jurisdiction on 457 visas

There has been another decision from the Federal Circuit Court which will help to untangle the tangled web surrounding the question of when the Administrative Appeals Tribunal has jurisdiction to hear an appeal against the refusal of a 457 visa application.

The AAT will have jurisdiction to hear an appeal against the refusal of a 457 visa application when:

  1. The applicant has been nominated by an approved standard business sponsor and the nomination remains in force (in other words the nomination has not lapsed due to the operation of Regulation 2.75;
  2. The applicant has been “identified” in a nomination that has been lodged by an approved sponsor, but the Department has not made a decision concerning the nomination;
  3. The Department has refused to grant approval to the employer as a standard business sponsor, but an application for review of that refusal has been made to the AAT and is still pending before the AAT at the time that the application for review of the refusal of the 457 visa application is made.
 
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The DIBP and Australian Tax Office: Data matching and information sharing

DIBP and ATO information sharing

A Data Matching Programme between the Department of Immigration and Border Protection (DIBP) and the Australian Taxation Office (ATO) is now gazetted DIBP share data with ATO.

Information that will be provided to the ATO by the Department of Immigration will be:

  • names
  • addresses
  • details of visa holders,
  • sponsors
  • migration agents

Data will come from the financial years ending 2014, 2015, 2016 and 2017.

This amounts to around 1 million people.

The ATO have produced a 'data matching protocols' page on their website which goes into more detail.

 
 

We hope that you have found the information in this issue of our newsletter to be enriching and useful. Stay tuned for our next publication and if you would like to talk to us directly, please do not hesitate to email service@noborders-group.com. In addition, if you would like your contact details updated or removed from this distribution list or you know someone who would like to be added, please email us on the same address.

"The only limits to being the person you truly want to be are your own self-limiting beliefs and thoughts. In every moment, you have the power to choose your life"

 
 

No Borders Group

Email: service@noborders-group.com
Phone: (+61) 07 3876 4000

 
 

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